A Judges Opinion Could Aid His Own Case

As usual, Justice Richard Sanders is turning a tin ear to his critics.

As usual, Washington State Supreme Court Justice Richard Sanders is getting heat from all sides. And as usual, it doesn't faze him. "I cannot do my duty down here at the Supreme Court and be worried about how my critics see things," says the maverick justice by phone from Olympia. Having twice faced state disciplinary actions, he's back in the crosshairs of critics and the press for writing a January Supreme Court opinion in a public-records suit that could make it easier for him to collect an additional $600,000 in his own similar case.Some legal experts now say he should have recused himself from the suit, brought by ex-Seattle hotelier Armen Yousoufian against King County. And editorial writers have called for new disciplinary action. "The newspaper editorial boards have a skewed way of looking at things," complains Sanders, a justice for 13 years. "The [Spokane] Spokesman-Review said the Commission on Judicial Conduct should reprimand me again." Heck, he says, convicted Spokane serial killer Robert Yates "got better treatment from the paper than I have."King County attorneys last week filed a new motion over the Yousoufian decision, asking that it be vacated because Sanders "stood to personally gain" from the ruling, which favored the plaintiff. Sanders denies that, saying the state Supreme Court's ethics advisor approved his participation in public-records cases, even though he has one of his own pending.Spokane attorney Steve Eugster, a friend of Sanders who also blogs regularly on Supreme Court doings, feels Sanders got bum advice, and generally sides with King County. "I think perhaps the court should withdraw the Yousoufian decision and do it over again without Richard," he says. That's called for, Eugster contends, by a U.S. Supreme Court decision in a judicial ethics case called Aetna Life Insurance Co. v. Lavoie. University of Pennsylvania law professor Geoffrey Hazard, considered perhaps the nation's top legal-ethics expert, agrees. He tells Seattle Weekly "The situation as you describe it exactly corresponds to Aetna Life Insurance Co. v. Lavoie." In that case, the court decided the "appearance of justice" would best be served by vacating the decision and rehearing the issue with another judge.Sanders' January opinion in Yousoufian v. Office of Ron Sims was joined by three justices while two others separately supported the ruling, for a 6-3 decision. It eased the way for Yousoufian to collect higher penalties for the wrongful withholding of public documents by the King County Executive. Yousoufian filed the case in 1997 after the county delayed and intentionally withheld records on Sims' efforts to build taxpayer-funded Qwest Field for Seahawks owner Paul Allen.Under the state's Public Records Act, government agencies can be penalized from $5 to $100 daily for wrongful withholding of requested documents. The total can soar depending on such factors as whether the withholding was inadvertent or intentional. Trial judges have the discretion to decide the correct penalties, but typically have favored the low end of the scale, $5—what Yousoufian was awarded.Yousoufian argued that was a trifling amount and lacked the deterrent effect a larger fine would bring. He returned to court twice and got the penalty increased to $15 a day, but appealed again last year to the state Supreme Court.Sanders, who's been seeking a similar penalty increase in his own ongoing public-records case against state Attorney General Rob McKenna, not surprisingly agreed with Yousoufian's argument. "Proper deterrence for King County and others," he wrote in the Yousoufian opinion, "clearly requires a penalty at the high end of the penalty range." Yousoufian's case was remanded to the lower court for yet another payment hearing. Yousoufian thinks he could be awarded $900,000 or more in penalties (see "Persistence Could Pay Resident $1 Million Dividend," SW, Jan. 27, 2009).Now, in court papers, Sanders is arguing that his own ruling, in part, paves the way for a larger penalty in his own case.Sanders' suit grew out of a disciplinary action lodged against him after he visited with imprisoned sex offenders. The Commission on Judicial Conduct thought his impartiality had been compromised, and admonished him in 2005. In the course of that battle, Sanders sought state documents from Attorney General Rob McKenna—some of which he felt were wrongfully withheld. He filed suit in 2005. A Thurston County Superior Court judge agreed in 2007 that McKenna violated the law and ordered the AG's office to pay the justice a $5 daily penalty—or $18,112. Sanders was also awarded $55,443 in attorney's fees. But Sanders appealed, asking for a $70 a day penalty plus four times higher legal fees.The state Court of Appeals recently decided it didn't want anything to do with the case because of Sanders' involvement, so it's being kicked up to Sanders' own court. Sanders is at least seeing fit to recuse himself from ruling on his own case, which does not yet have a hearing date. In fact, all the Supremes will sit this one out, and a panel of temporary justices will fill in. (A similar substitute panel ruled against Sanders when he appealed his admonishment from the Commission on Judicial Conduct in 2005.)Last month, Sanders and the state filed new briefs in Sanders' case, with Sanders citing his own opinion in Yousoufian to support his position. "The trial court," he said in his appeal, quoting himself, "must consider the entire penalty range established by the legislature, reserving the extremes for the most and least culpable conduct." Essentially he asked the appeals court—and will now be asking his own court of temp judges—to do for him what he and his court did for Yousoufian: remand his case back to the trial judge to consider a greater penalty under his new ruling.Not weird enough? McKenna, in his brief, claims Sanders' actions speak louder than his words. "It appears that Justice Sanders himself did not think that the Yousoufian opinion he authored would apply retroactively to his own pending appeal," the AG argues. "If there was any potential that it would have applied retroactively to his own case, Justice Sanders should have recused himself from the Supreme Court's consideration of Yousoufian."In other words, how can Sanders argue his ruling applies to his case when justices are not allowed to sit on cases that apply to them? Asked about that last week, Sanders said "They're spinning it. That's what lawyers do." His case is different from Yousoufian's factually, he says, and he's not asking for any more than he always was. The Yousoufian opinion, even if he did author it, merely makes it more likely a larger penalty will be imposed, he says.Sanders maintains he won't gain from his decision; any higher penalty will go to his attorneys, he says. His vote on Yousoufian was "not determinative," he says, since he was joined by other justices in the opinion. Sanders is resolute that his actions were ethical despite a state canon (code of conduct) that says "Judges should disqualify themselves in a proceeding in which their impartiality might reasonably be questioned...[and when a judge] has an economic interest...or any other interest that could be substantially affected by the outcome." Was there at least the "appearance" of a conflict of interest? "I don't see anything in the canon about 'appearance,'" he says.He insists he has no regrets. The 2005 suit wasn't a secret; there'd been a few newspaper stories about it, and some of the other justices were aware of it, he says. No one raised the conflict issue until his ruling. "I think," Sanders says, "if I'd joined the dissent [and denied Yousoufian's appeal], there wouldn't be an issue." But then there might not be a ruling that benefits him, either.randerson@seattleweekly.com